1. Introduction 

The aim of the present document is to provide an initial basis for determining whether the cinematographer can justifiably be included among the co-authors of a motion picture.
To this end, we shall briefly analyze the normative situation under the current (italian) Law 633 (Copyright Law) of 22 April 1941, and state the legal arguments in favor of extending the number of co-authors of a motion picture. 

2. Original works under the current Italian Copyright Law 

As we know, the Copyright Law presently in force (in Italy) protects original creative works classifiable as literature, music, figurative art, architecture, theatrical and cinematic works, whatever the means and form of expression may be (art. 1). To facilitate interpretation, the legislator supplies a list of the types of original work that are unquestionably protected by copyright (art. 2); this recognition is held to be merely representative and not absolute, inasmuch as the essential requirement for the protection of a work can be solely identified (i) in the realization and manifestation of the work itself (in fact, copyright protects manifest products of the intellect, and not artistic or creative ideas as such) and (ii) in the creative nature of the work, understood as the author's individual and personal contribution.

Originally, copyright - regarding both the economic aspect and the moral protection of the author- could be obtained solely for the creation of a work (art. 6) and belonged to the creator of the work, that is to say the author and/or co-author.
Consequently, if the work is created with indistinguishable and inseparable contributions from more than one person (a so-called "joint work"), the copyright belongs "jointly" to all the co-authors (art. 10). This law, originally conceived in relation to works by a single author, is applicable also to those works in which there are no indistinguishable and inseparable contributions.

In particular, the provisions of art. 10 are also applicable to so-called "composite works," that is, those works that - like the motion picture - are a product of the combination of diverse forms of creative activity (literary, musical, etc.).
In this case, in fact, the authors are entitled to (i) exclusive rights in relation to the diverse elements (literary, musical, photographic, etc.) of which they are the sole creators, as well as (ii) rights shared with all the co-authors of the composite work (i.e. a motion picture) that is a product of the creative combination of all the pre-existing elements. 

3. The motion picture and the cinematographer 

The motion picture is governed by art. 44 and ss., Section III, of the Copyright Law.
In particular, art. 44 expressly identifies only the authors of the story and the screenplay (the authors of the literary elements of the film), the composer of the music (the composer of the musical element of the film) and the director of the film, as the co-authors of a motion picture (which, we repeat, can legally be termed a composite work in whose realization the above individuals participate with an equally important creative contribution).

The cinematographer (the creator of the photographic element of the film) is excluded from the list of co-authors in art. 44, independently of any evaluation in terms of the creativeness and importance of the contribution made by the cinematographer to a motion picture. In fact, the reasons for his being excluded are either of a historical nature (traceable to the origins of the present law) or opportunist, and therefore not based on legal arguments (see below).
The legislator's choosing not to include the cinematographer among the co-authors of a motion picture has for some time been the object of fierce and warranted criticism and is therefore central to the present debate as to whether the Copyright Law should be suitably modified. Inasmuch as the creative contribution made by the cinematographer is such as to profoundly influence and actually modify the expressive form of the motion picture, thus wholly conforming with the prime requisite for the protection of a work (i.e., the realization and manifestation of the work, as stated above).

Concerning this, and in order to better understand the reasons for the cinematographer's being excluded, we feel it is necessary to briefly explain the origins of the present Copyright Law (in Italy).

When the (italian) Copyright Law, which was the first to include the motion picture, was promulgated in 1925, the individuality and hence the artistic specificity of the motion picture (which at the time had only just begun to be widely distributed) was not immediately understood.
Notwithstanding the technical specificity and the diverse origin of a motion picture with regard to existing works, it was not recognized as an individual original work that differed from the former ones.
On the contrary, the legislator conceived of the motion picture as a mere theatrical work

transformed into film (just as, in the beginning, he considered an opera to be a mere literary work set to music).
Consequently, in the Law of 1925, the Italian legislator identified the artistic elements of a motion picture exclusively as the "libretto," the "musical accompaniment" and the "film," combining in the latter all the new elements of a motion picture understood as a new means and form of expression eligible for protection by copyright.

This practice, i.e., the similar application of provisions originally made for opera and therefore totally irrelevant to the creative context of the motion picture, nevertheless helps us to understand the reasons why the cinematographer was not originally included among the co-authors of a motion picture.
Subsequently, when Law 633 of 22 April 1941 came into force, the reasons for the cinematographer's being excluded from the group of co-authors of a motion picture lay not so much in the "unrecognized" individuality and artistic identity of the motion picture, as in evaluations of a more legal nature.
The 1941 legislator, in fact, excluded photography from the group of works classified as creative and hence from the category of original works eligible for protection by copyright.
Photography was granted limited protection, which was confined to connected rights (i.e., rights connected to the exercise of copyright); in particular, in accordance with art. 87 of the Copyright Law, in the text still in force and with the purpose of assigning to the photographer rights connected to the exercise of copyright, the term "photographs" is used to indicate "the images of people or aspects, elements or events of everyday or social existence, obtained through the photographic process or a similar process, including the reproduction of works of art and the frames of motion pictures." With regard to these photographs (understood as being devoid of creative content), the photographer was assigned the exclusive right to authorize their reproduction, distribution and sale; however, "if the work was produced during the course and fulfillment of a contract of employment or labor contract, within the limits of the subject and aims of the contract, the exclusive right belongs to the employer" (i.e., to the producer in the case of a motion picture).
Hence, no copyright protection whatsoever (and consequently no recognition of any moral right whatsoever) was accorded to cinematographers under Law 633/1941 in its original formulation.
Consequently, the cinematographer, unlike the authors of the literary and musical elements (both already subject to individual copyright protection) was not included by the 1941 legislator among the co-authors specified in art. 44 of the Copyright Law.

It is common knowledge that the above situation changed radically when Italy ratified the Bern Convention (the text revised in Paris in 1971): with Presidential Decree 19 of 8 January 1979 the legislator, in applying said Convention, modified art. 2 of the Italian Copyright Law by including in it "photographic works and those works realized with a similar process as long as it is not basic photography that is protected under the norms in para. V, II (i.e., photographs devoid of creative content)."
The promulgation of this amended law, therefore, partially removed the legal obstacle that was preventing the extension of the group of co-authors of a motion picture; whereas no obstacle can be said to exist regarding the nature of the contribution made by the cinematographer. This contribution must in fact be considered to be creative, and equal to that made by the other co-authors: creative, inasmuch as the images imprinted on the negative, which give the motion picture its concrete form, are the result of choices regarding the use of light, color, perspective, materials, and so on, and therefore an expression of extremely personal and individual choices made by the cinematographer; equal, inasmuch as cinematography contributes, to the same degree as the literary, musical and directorial elements, to arousing emotional reactions and artistic emotions in the movie-goer.
In this regard, we feel that it is important also to point out that the cinematographer, given the specificity of his artistic and technical contribution, is the only guarantor of the quality of the prints and therefore of the quality of the images of a motion picture. His not being included among the co-authors of a motion picture gives rise to the paradox of preventing the one person truly able to perform such a function, from taking action to protect the quality and hence the integrity of a motion picture and the rights of the movie-goer.
Not to mention the fact that, from a technical point of view, a motion picture is none other than the projection of photographs in rapid succession, which are then synchronized with the sound.

We should also consider that Law 633 of 1941 was promulgated before the Italian Constitution came into force; therefore, one cannot exclude a certain unconstitutionality regarding the exclusion of the cinematographer from the explicit list of co-authors in the aforementioned art. 44 .
Concerning this, there is also the fact that some of the fundamental principles enshrined in the Constitution - for example, the principle of the protection of creativity and therefore of an original work in which the personality of an individual is expressed (art. 2); of the ban on any form of discrimination or inequality of treatment (art. 3); of the protection of the right of every citizen to work and to contribute to the material and spiritual development of society (art. 4) - seem to be undeniably compromised by an arbitrary legislative choice aimed at denying the legal status of co-author of a motion picture to the creators of the cinematography, one of the essential elements of a motion picture.
The illegitimacy of the exclusion of the cinematographer from the group of co-authors of a motion picture is corroborated by the fact that the legislator does not recognize in the Copyright Law the creative contribution made by the cinematographer, but fully acknowledges it in the promulgation of special norms governing the motion picture industry. Arts. 9 and 11 of the so-called Cinema Law 1213 of 1965 in fact recognize the creative nature of this contribution by assigning to the cinematographer, as well as to the authors of the story and the screenplay and to the director, the right to receive Awards in relation to the motion pictures for which the necessary certificate has been issued by the relevant authorities.

Lastly, we should also consider that the cinematographer is included among the co-authors of the cinematography in many countries, including Germany (since 1985), Finland (1997), Sweden (1997), Denmark (1997), Switzerland (1997), Austria (1997), Hungary (1997) 

4. Conclusion 

Considering the above facts, we maintain that the cinematographer can justifiably and legally be included among the co-authors of the motion picture, as stipulated in art. 44 of the Copyright Law.
We therefore propose modifying the current Law 633 of 21 April 1941, as follows: 

Art. 44 should read:
"The author of the story, the author of the screenplay, the composer of the music, the cinematographer and the director are considered the co-authors of a motion picture." 

 

Art. 46 should read:
"[1] The exercise of the rights of economic exploitation, which belong to the producer, refers to the cinematic exploitation of the work produced. 
[2] Barring agreements to the contrary, the producer cannot effect or project elaborations, transformations of translations of the work produced without the agreement of the authors indicated in art. 44. 
[3] The composers of the music and of the musical compositions, the creators of the photography and the authors of the lyrics that accompany the music, have the right to receive, directly from those persons who publicly project the work, a separate payment for the screening. The payment shall be established, in the absence of an agreement between the parties, according to the relative norms. 
[4] In the event that the authors of the story and of the screenplay, the cinematographer and the director are not paid a percentage on public screenings of the motion picture, they shall have the right, barring agreements to the contrary, when the box office receipts have reached a sum contractually established with the producer, to receive a further payment, the form and nature of which shall be established through agreements reached between the interested categories."

Dott. Barbara Bettelli
Legal AIC Representative for Authorship